America’s election laws are a mess. Here’s how we can fix them.

As state election laws are litigated throughout the country, one thing is clear: American elections are a mess. My view largely reflects that of Northwestern Law Professor Steven Calabresi, who argues that this is rooted in the erosion of two longstanding election norms, the secret ballot and same-day (or at least same-week) elections. These changes have damaged public trust in our elections. Much has been said about the former, but considering recent events in North Carolina, the latter deserves equal attention.

Secret ballots are important — especially in an increasingly polarized country — because one may not vote the same way in the presence of others that they would in private. Calabresi rightly notes that, “You cannot fill out a ballot at home in most cases without your family members knowing how you voted, and that means the sudden loss of the secret ballot.”

And in states with permissive absentee voting systems, election laws have become patently absurd. As Republican US Congressman Rodney Davis of Illinois notes, under California’s electioneering laws, political advocates cannot approach you within 100 feet of a polling place. These laws remain in place for fear of pressuring in-person voters. Those same advocates, however, can encourage you to request an absentee ballot, return to your home when it arrives, wait on your front porch as you fill it out, and carry your ballot (and an unlimited number of others) to a drop box.

The erosion of secret ballots also gives rise to the troubling strategy of ballot-harvesting: the practice of collecting large amounts of completed ballots by third-party individuals. The potential harm posed by ballot-harvesting is bipartisan. Some readers will recall the embarrassing scandal in the 9th Congressional District election of 2018.

The State Board of Elections declined to certify that election after an investigation found that Republican operative McRae Dowless and his staff “illegally collected absentee ballots for his candidate, discarded absentee ballots, were witnesses to hundreds of absentee ballots, [were] accused of attempting to submit unsealed and unmarked ballots, and directed his associates to avoid collecting ballots in African-American neighborhoods.”

It is enough to say that, without limiting ballot collectors to a close family member or limiting the number of ballots a non-election official can collect, ballot harvesting leaves open possibilities for undue influence. North Carolina rightfully changed its ballot harvesting laws in response to this risk. Absent federal action, we can only hope that public pressure to return to secret ballots intensifies in states with permissive ballot harvesting laws.

Much less is said about the erosion of a second longstanding election tradition: it increasingly matters when votes are cast. As the country’s eyes are again trained on North Carolina’s election, this issue is ripe for debate. The recent allegations that Lt. Gov Mark Robinson made deeply disturbing comments on a pornography website and the subsequent resignation of most of his senior campaign staff have shaken up an already tumultuous gubernatorial campaign.

Similarly, independent presidential candidate Robert F. Kennedy Jr’s unexpected withdrawal from the presidential race led to legal battles across the country — including in North Carolina — about whether his name should remain on already-printed ballots.

A bombshell story affecting a race just weeks before an election is nothing new. North Carolina voters will recall that, with just under a month until the 2022 US Senate election, text messages between Democratic Candidate Cal Cunningham and his alleged mistress upended his campaign. Likewise, the leak of the Access Hollywood tape stirred controversy just weeks before the 2016 presidential election.

Even with this backdrop, states around the country continue to expand early voting periods to greater and greater lengths. But the examples above serve as warnings to states like our neighbors to the north, where Virginians began casting votes 46 days before the general election.

As early voting periods expand, so does the likelihood that two voters can vote in two entirely different political realities. Imagine, for instance, if North Carolina began its early voting period before the Mark Robinson story broke. Or imagine that Vice President Harris and former President Trump agree to a debate on Oct. 10, in which President Trump has a disastrous performance, drastically shifting the campaign’s momentum. These are not unlikely scenarios. In 2020, thousands of votes were cast before the final presidential debate. Can states offer any remedy to voters who cast their vote a month and a half before election day but, due to new information, now regret their choice?

In no way do I suggest that efforts should be made to limit voting. An informed and active electorate is essential to a functioning democracy. Absentee voting is a useful tool that enables servicemembers and those living abroad to participate in the political process. Voters should, however, be free from outside influence and without fear of being ostracized for their choices. Neither do I pose an absolute solution to the problems inherent with a lengthy early voting period.

I only encourage state leaders to carefully consider the disadvantages of lengthening the early voting period. Creating more opportunities to vote within a shorter length of time preserves voting rights while ensuring that voters cast ballots with access to the same information. A return to these election traditions will strengthen the public’s confidence in our elections.